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Forest Preserve District of Cook County v. Continental Community Bank And Trust Co.

Court of Appeals of Illinois, First District, Fifth Division

December 22, 2017

THE FOREST PRESERVE DISTRICT OF COOK COUNTY, ILLINOIS, a Body Corporate and Politic of the State of Illinois, Plaintiff and Respondent-Appellant and Cross Appellee,
v.
CONTINENTAL COMMUNITY BANK AND TRUST COMPANY, an Illinois Corporation, as Successor to May wood-Proviso State Bank, as Trustee under Trust Agreement dated November 1, 1983, known as Trust No. 6173; JACK RIVO; and UNKNOWN OTHERS, Defendants Greg Bedell, Fee Petitioner-Appellee and Cross-Appellant. THE FOREST PRESERVE DISTRICT OF COOK COUNTY, ILLINOIS, a Body Corporate and Politic of the State of Illinois, Plaintiff and Respondent-Appellee,
v.
CONTINENTAL COMMUNITY BANK AND TRUST COMPANY, an Illinois Corporation, as successor to May wood-Proviso State Bank, as Trustee under Trust Agreement dated November 1, 1983, known as Trust No. 6173; JACK RIVO; and UNKNOWN OTHERS, Defendants Greg Bedell, Fee Petitioner-Appellant.

         Appeal from the Circuit Court of Cook County. Nos. 15 L 50227 00 L 50726 (consolidated) Honorable Kay M. Hanlon and Eileen O'Neill Burke, Judges Presiding.

          JUSTICE ROCHFORD delivered the judgment of the court, with opinion. PRESIDING JUSTICE REYES and JUSTICE LAMPKIN concurred in the judgment and opinion.

          OPINION

          ROCHFORD JUSTICE

         ¶ 1 The Forest Preserve District Of Cook County, Illinois, a body corporate and politic of the State of Illinois (the District), originally filed this suit seeking to utilize its power of eminent domain to acquire certain property held in trust by defendant, Continental Community Bank And Trust Company, an Illinois corporation, as successor to May wood-Proviso State Bank, as Trustee under Trust Agreement dated November 1, 1983, known as Trust No. 6173 (the Trustee), for the benefit of defendant, Jack Rivo (collectively referred to as Mr. Rivo, as he is both a named defendant and the beneficiary of the trust).

         ¶ 2 In its current appeal (no. 1-17-0680), the District seeks: (1) relief from a judgment for attorney's fees and costs awarded to Rivo's former attorney, fee petitioner Greg Bedell; and (2) reversal of the circuit court's orders denying the District leave to file a complaint for interpleader and denying its motion to declare invalid an attorney lien asserted by Mr. Bedell. In his cross-appeal, Mr. Bedell seeks reversal of the circuit court's denial of his petition to adjudicate and enforce his attorney's lien. Finally, in Mr. Bedell's separate appeal (no. 1-17-0680), which he describes as a "secondary, alternative remedy" should this court rule in the District's favor on its appeal, Mr. Bedell again seeks reversal of the circuit court's denial of his petition to adjudicate and enforce his attorney's lien.

         ¶ 3 With respect to the District's appeal, while we affirm the circuit court's decision to grant Mr. Bedell an award for attorney fees and costs, we vacate that part of the judgment determining the amount of fees and costs and remand for a recalculation of the proper amount of that award under a theory of quantum meruit. In light of our resolution of this issue, all of the remaining issues raised by the parties on appeal are rendered moot.

         ¶ 4 I. BACKGROUND

         ¶ 5 This case has been the subject of many prior appeals to this court, yielding-inter alia- decisions affirming the circuit court's order granting summary judgment in favor of Mr. Rivo with respect to the condemnation complaint, as the District never passed a valid ordinance authorizing the acquisition of the property in question, and a decision dismissing for lack of jurisdiction a prior appeal from the circuit court's award of attorney fees. See Forest Preserve District of Cook County v. Continental Community Bank & Trust Co., No. 1-12-2211 (Sept. 6, 2012) (appeal dismissed for lack of jurisdiction); Forest Preserve District of Cook County v. Continental Community Bank & Trust Co., 2014 IL App (1st) 131652-U (appeal dismissed for lack of jurisdiction); Forest Preserve District of Cook County v. Continental Community Bank & Trust Co., 2016 IL App (1st) 152145-U (summary judgment in favor of Mr. Rivo on condemnation complaint affirmed); Forest Preserve District of Cook County v. Continental Community Bank & Trust Co., 2017 IL App (1st) 153512-U (appeal from attorney fee award dismissed for lack of jurisdiction). The orders entered by this court in those prior appeals, including the factual background set out therein, are incorporated herein by reference. Therefore, we restate here only those facts necessary to our resolution of the appeals currently pending before us.

         ¶ 6 This dispute dates to 2000, when the District began filing a number of eminent domain actions, including this suit in which the District sought to acquire 12.5 acres that were held by the Trustee for the benefit of Mr. Rivo. In 2003, Mr. Rivo agreed to give the District fee simple title to that property in exchange for $1.4 million, the circuit court entered an agreed judgment order to that effect on March 6, 2003, and Mr. Rivo subsequently received the funds, less $50, 000 that was retained in an escrow account and was to be paid when Mr. Rivo finally vacated the property.

         ¶ 7 Other property owners who had not entered into settlement agreements opposed the condemnation of their properties. They argued, successfully, that the District never had legal authority to condemn any of the relevant properties because the board had not properly adopted the necessary ordinance. See, e.g., Forest Preserve District of Cook County v. First National Bank of Evergreen Park, Nos. 1-04-1536 and 1-04-3777 (consolidated) (2008) (unpublished order under Supreme Court Rule 23). On October 27, 2003-in light of the success these other property owners had in opposing condemnation of their properties-Mr. Rivo petitioned for relief from the agreed judgment order entered in this matter, pursuant to section 2-1401 of the Code of Civil Procedure (Code). 735 ILCS 5/2-1401 (2004).

         ¶ 8 Mr. Rivo was represented by Mr. Bedell in the section 2-1401 proceeding, pursuant to a retainer agreement executed in October 2003. With respect to the scope of Mr. Bedell's representation, the retainer agreement provided that Mr. Bedell's representation of Mr. Rivo would be "limited to seeking post judgment relief through the filing and prosecuting [of] a petition to vacate the settlement and judgment entered against you under 735 ILCS 5/2-1401." With respect to Mr. Bedell's compensation, the retainer agreement provided that Mr. Bedell would be paid "a non-refundable $1, 200.00 retainer and that in the event of recovery, whether by settlement or trial, I will be paid 20% of the amount recovered. (The $1, 200 will be deducted from the 20% contingency fee in the event of recovery.) If there is no recovery, you owe me no more fee than the retainer you paid." Mr. Rivo was also responsible for the payment of all "costs associated with this matter." On July 22, 2009, a written notice of attorney's lien detailing the contingency provision contained in the retainer agreement was served by hand-delivery upon the District's general counsel.

         ¶ 9 The parties ultimately filed cross-motions for summary judgment on the section 2-1401 petition. In an order entered on February 15, 2012, the circuit court granted summary judgment in favor of Mr. Rivo, denied the District's cross-motion, vacated the agreed judgment order previously entered on March 6, 2003, and reinstated the condemnation case. The District attempted to appeal from this decision, but the appeal was dismissed for lack of appellate jurisdiction. Forest Preserve District of Cook County v. Continental Community Bank & Trust Co., No. 1-12-2211 (Sept. 6, 2012).

         ¶ 10 Thereafter, on October 10, 2012, Mr. Bedell filed both a petition for attorney fees and costs, as well as a motion to withdraw as Mr. Rivo's attorney. In the petition for fees, Mr. Bedell contended that he had spent nearly 300 hours representing Mr. Rivo in the section 2-1401 proceedings, his usual and customary rate during that time ranged between $250 and $350 per hour, and $1, 546.50 in costs had been incurred. Mr. Bedell therefore sought an award of $93, 116.50 in fees and costs. The fee petition did not reference or rely on the contingency fee agreement contained in the retainer agreement in any way.

         ¶ 11 In the motion to withdraw, Mr. Bedell asserted that-in light of the summary judgment granted in favor of Mr. Rivo on the section 2-1401 petition-he had satisfied his obligations to Mr. Rivo under the original retainer agreement. Mr. Bedell also contended that, while he had consulted with Mr. Rivo regarding the prosecution of additional damages claims against the District, Mr. Rivo was unwilling to follow Mr. Bedell's advice and there had been a breakdown in communication between attorney and client. Noting these facts and his interest in the outcome of his fees petition, Mr. Bedell asked the circuit court for leave to withdraw as Mr. Rivo's attorney and leave to file an appearance on his own behalf with respect to the fee petition. Mr. Bedell's motion to withdraw was granted on October 30, 2012.

         ¶ 12 Mr. Rivo subsequently obtained new counsel to represent him in prosecuting various claims against the District. Those claims included counterclaims stemming from the condemnation proceedings, including allegations that Mr. Rivo was entitled to millions of dollars in damages and to reacquire title from the District. Mr. Rivo's new counsel also filed a motion for summary judgment on the District's complaint for condemnation.

         ¶ 13 In response, the District filed a combined motion which sought to: (1) vacate the prior ruling granting Mr. Rivo's section 2-1401 petition, (2) strike Mr. Rivo's counterclaims, and (3) deny Mr. Rivo's motion for summary judgment in this condemnation action.

         ¶ 14 These motions were heard in 2013. In a three-part order entered on April 18, 2013, the circuit court denied the District's combined motion to vacate the prior ruling granting Mr. Rivo's section 2-1401 petition and to strike Mr. Rivo's counterclaims, and granted Mr. Rivo's motion for summary judgment on the condemnation complaint.

         ¶ 15 The District filed an appeal from the denial of its motion to vacate the prior ruling granting the section 2-1401 petition. However, this court once again dismissed the District's appeal for lack of appellate jurisdiction. Forest Preserve District, 2014 IL App (1st) 131652-U, ¶ 10.

         ¶ 16 Upon remand, Mr. Rivo filed a motion seeking a finding of enforceability and appealability with respect to the summary judgment ruling, pursuant to Illinois Supreme Court Rule 304(a) (Ill. S.Ct. R. 304(a) (eff. Jan. 1, 2015)), while the District filed a motion seeking reconsideration of the grant of summary judgment in favor of Mr. Rivo on its condemnation complaint. In an order entered on June 26, 2015, the circuit court denied the District's motion and granted Mr. Rivo's motion, finding that there was no just reason to delay appeal of "[t]he 4-8-13 order granting summary judgment." The District appealed, and this court concluded that that the circuit court properly granted summary judgment in favor of Mr. Rivo on the condemnation complaint. Forest Preserve District of Cook County v. Continental Community Bank & Trust Co., 2016 IL App (1st) 152145-U. The District filed a petition for leave to appeal that decision with our supreme court which, pursuant to a settlement agreement discussed below, was subsequently withdrawn on April 11, 2017.

         ¶ 17 Meanwhile, while Mr. Bedell's original petition for fees was stricken for failure to attach and account for the retainer agreement, he was granted leave to file an amended petition. The operative amended fee petition was filed on September 15, 2015. Therein, Mr. Bedell specifically relied upon section 70(a) of the Eminent Domain Act (the Act) (735 ILCS 30/10-5-70(a) (West 2014)), which provides for the award of fees and costs where it is determined that a plaintiff "cannot acquire the property by condemnation" and the defendant incurs such fees and costs "in defense of the complaint." He also primarily relied upon the retainer agreement to support a claim for fees and costs. According to Mr. Bedell's amended petition, the retainer agreement entitled him to a fee of 20% of any amount recovered. Further, Mr. Bedell asserted:

"When this Court granted the 2-401 petition and vacated the order awarding the Defendant's property to the District, Bedell recovered for the Defendant his property. As a basis of the fees to be awarded under the Act, the Court should award the fee due from Defendant to Bedell under the fee agreement: using the conservative value of the Defendant's property, which the District determined in 2003 to be $1, 400, 000, Bedell is entitled to a fee of $280, 000 ...

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